Writ Of Habeas Corpus Research Articles

Writs and Rights: A Comprehensive Study of Judicial Remedies in India

The Indian Constitution give High Courts the power to issue writs to authorities, directing them to take or avoid from taking activities that are needed by law and the Constitution. Even before independence, several Indian High Courts had some few writs jurisdiction; however, the true extent and berth of this power have only been fully pour by High Courts after the Indian Constitution, which guarantees basic rights, came into effect. All Indian courts are obligated to provide appellate and supervisory jurisdiction over district and subordinate courts within the territories they oversee. This means that high courts may have the most extensive caseload of any court level. Research has indicated that the maximum Due to a combination of a lack of human resources and an inadequate case load, High Courts in India frequently experience delays and backlogs in cases. The community of the court to judge whether legislative acts are constitutional is called as judicial review of legislative acts. Enabling judicial review of State security measures that result in an unauthorized deprivation of an individual's liberty is the primary goal of writ of habeas corpus. Instead, then punishing any officials in charge of their incarceration, the purpose of the writ is to release the individual from unlawful cure. These are the writs that are explicitly mentioned in the Constitution tonight: Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto. All forms of the government apart from dictatorship must have a robust, impartial, and independent judiciary. The judiciary is essential to the interpretation and application of the law in any nation and resolving conflicts that arise between citizens as well as between citizens and the state. When a written constitution is in place, the courts also carry out the expensive duty of conserve the supremacy of the document by explain and distinguish its provisions and check that all authorities endure within it enclose.

A Critical Study of the Writ of Habeas Corpus from Indian Scenario

A Critical Study of the Writ of Habeas Corpus from Indian Scenario

The Prerogative Writs of Habeas Corpus and Quo Warranto under the Pakistani Legal System: A Critical Overview

The Prerogative Writs of Habeas Corpus and Quo Warranto under the Pakistani Legal System: A Critical Overview

The Writ of Habeas Corpus after Cone v. State

The Writ of Habeas Corpus after Cone v. State

Enforcement of Preventive Detention Law in Manipur

The preventive detention laws have been invoked and used vigorously to detain members of outlawed organizations in the insurgency affected state of Manipur for the last many years. It is well settled that the detention of a person under the preventive detention laws is not to punish him for something he has done but to prevent him from doing it. Since the detention is made on the basis of subjective satisfaction of executive, the preventive detention laws are being extensively abused and misused, especially in the NE state of Manipur. In the catena of cases decided by the constitutional courts of India held that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities he must be again detained so as to prevent him from indulging in such prejudicial activities, the detention order can validly be made. It is pertinent that the order of detention of a person shall, obviously deprive of his cherished rights and freedoms; henceforth, the laws pertaining to preventive detention need to be meticulously invoked and followed substantively and procedurally by the concerned authority. The paper also examines the recent trends of the High Court of Manipur in issuing the writ of habeas corpus against the misuse of preventive detention laws by executive authorities in the state of Manipur.

Writs of Habeas Corpus for Nonhuman Primates in the United States and the Nonhuman Rights Project: Legal Processes and Arguments Used to Secure Nonhuman Animal Rights

Questions concerning (nonhuman) animal rights have been increasingly addressed within the criminological literature due to growing interest in green criminology. Often within criminology, animal rights issues have been primarily addressed from philosophical standpoints, which omit how animal rights are addressed in more concrete terms through the legal system. This philosophical orientation toward animal rights, while important, has led to a neglect of the ways in which animal rights might be promoted through legal means. This article addresses that latter point by exploring the use of writs of habeas corpus for animals promoted by Steven Wise and the Nonhuman Rights Project (NhRP) in the US. Much of the NhRP’s efforts have been devoted to nonhuman primates, and consistent with that approach, this assessment focuses attention on legal efforts to protect nonhuman primates’ rights. In addition to NhRP efforts, other possibilities for using the law to obtain rights for animals in the US are examined. While this article focuses on circumstances in the US, several nations employ such writs or similar legal mechanisms.

On the Legal Status of Human Cerebral Organoids: Lessons from Animal Law.

This paper will ask whether the legal status presently afforded to nonhuman animals ought to influence regulatory debates concerning human cerebral organoids. The New York Courts recently refused to grant a writ of habeas corpus to Happy the Elephant as she was property rather than a legal person while at the same time accepting that she is a moral patient deserving of rights protection. An undesirable situation has therefore arisen in which the law holds a being with moral status to be incapable of benefitting from legal redress due to their legal status as property.The author argues that this is something that we ought to avoid when designing the regulatory framework which will govern the use of human cerebral organoids. Yet, a difference exists in that, whereas the judges already accept Happy is a moral patient, there is presently no consensus around the moral status of organoids. This paper will consider whether human cerebral organoids have passed the moral threshold of sentience. If they have, or are close to doing so, regulators ought to consider their legal status in advance so as to ensure that adequate limitations are placed on this usage so as to avoid unethical practices.

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride

Enforcing the Fugitive Slave Acts in the South: Federalism, Irony, and the Conflict of Jurisdictions, 1787–1861

Enforcing the Fugitive Slave Acts in the South:Federalism, Irony, and the Conflict of Jurisdictions, 1787–1861 Alice L. Baumgartner (bio) In 1853, a runaway slave from Maryland named George Smith was caught in Pennsylvania.1 Under the terms of the new Fugitive Slave Act that Congress had passed three years earlier, Smith was not entitled to a jury trial. Instead, the act authorized federal magistrates, "upon satisfactory proof being made," to grant certificates that empowered slaveholders to "pursue and reclaim" any "person held to service or labor in any State or Territory of the United States" who "shall hereafter escape into another State or Territory of the United States." Fugitive slaves could not testify in their own defense or dispute their detention in court—the basic right of habeas corpus. The commissioners' decisions could not be appealed.2 In accordance with the Fugitive Slave Act of 1850, George Smith's captors hauled him before a federal magistrate in Philadelphia. But before the magistrate could sign the certificate for Smith's removal, a writ of habeas corpus arrived from the Philadelphia County Court of Quarter Sessions. George Smith had been earlier indicted for assault and battery. The writ ordered the U.S. marshal to deliver the fugitive slave to the county sheriff, who would bring him to the state courthouse. The federal [End Page 475] magistrate had to decide whether to return Smith to his captors or to the Court of Quarter Sessions. More broadly, the order raised the question: did Pennsylvania criminal law take precedence over the Fugitive Slave Act of 1850? The magistrate had good reason to uphold the Fugitive Slave Act and return Smith to his Maryland captors. Article VI of the U.S. Constitution, in what is commonly known as the supremacy clause, stated that federal laws should take precedence over state laws. In addition, the United States Supreme Court had denied in 1842 the constitutionality of "any state law or regulation which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his service or labor." The federal magistrate returned George Smith to his owner, in accordance with the Fugitive Slave Act of 1850.3 George Smith's fate—and that of other runaways north of the Mason-Dixon Line—is well known to scholars of slavery and the antebellum United States.4 But scholars have largely ignored how the law worked in the South—a significant oversight given that the vast majority of fugitive slaves never crossed the Mason-Dixon Line.5 This omission is based on the reasonable assumption that southern whites were so [End Page 476] committed to the institution of slavery that they returned runaways to their owners as a matter of course. But like the nonslaveholding states, slaveholding states did pass laws that sometimes conflicted with slaveholders' constitutional right to recover their fugitive slaves.6 One such law was at issue in another fugitive slave case, which resembled George Smith's in every particular except where the runaway was caught. In 1852, a fugitive slave named Solomon Smith was captured in St. Mary Parish, Louisiana. But before he could be returned to his owner, he was charged with "firing at and wounding, with intent to kill, Mr. Wm. Hungerford," while Hungerford was attempting to capture Smith and a number of other "runaway rascals who [had] for months infested" the parish. This case exposed what historian Ariela J. Gross calls the "double character" of slavery: on the one hand, enslaved people were persons, capable of committing crimes and standing trial for them; on the other, they were property, destined to be returned to their owners. The question before the court was whether Solomon Smith should be returned, as property, to his owner or tried, as a person, for his crimes. Although Solomon Smith committed a similar crime as George Smith (no relation), the court in Louisiana reached the opposite decision from the magistrate in Pennsylvania. In Louisiana, the right of a slaveholder to recover his property appeared not to take precedence over state criminal law. Solomon Smith was tried and sentenced to be hanged.7 Criminal statutes were not the only state...

Habeas Corpus as a Remedy for Deprivation of the Right to Personal Liberty: Contemporary Developments in Lesotho

Abstract Long before the inclusion of bills of rights in written constitutions, the common law had great regard for the personal liberty of the individual. This was realised through the writ of habeas corpus which was available to protect anyone unlawfully deprived of their liberty. This ancient writ has not only survived at common law; it also remains active in contemporary judicial pronouncements. The writ has received acceptance by modern constitutions in different countries as a fundamental right enforcement process. This article examines the judicial application of that process in Lesotho within the constitutional framework of the protection of the right to personal liberty; depicting the acceptable parameters as would make the reliance on that process by individuals and the courts a more effective tool in affording reliefs to persons who are deprived of their constitutionally protected personal freedom.

The State of Economy of Cotabato City during the Implementation of Martial Law Pursuant to Proclamation No. 216

Mindanao was placed under Martial Law when President Rodrigo Duterte declared the suspension of the writ of habeas corpus on May 23, 2017 by virtue of Proclamation No 216. The call was made in an attempt to control the spread of threat brought about by the armed rebel Maute Group when they sieged Marawi City. Previous studies argued that a state is economically developed when the markets regulate themselves and the government has less intervention over it. It also concluded that dictatorship or strong political participation, when temporarily held, promote economic development. This study assessed the status of economy of Cotabato City as one of the areas of trade and commerce in Mindanao being affected by the implementation of Martial Law. Martial Law in the Philippines was always viewed as the military, headed by its Commander-in-Chief, the President, taking total control of the political power thereby inflicting negative impact on the state’s economy. The economic status of Cotabato City during Martial Law implementation was evaluated specifically in terms of trades, investments, local employment and tourism. Results presented that despite of Martial Law period, Cotabato City’s state of economy, particularly its activities on trades, investments, local employment and tourism, is high. This study showed that political intervention during the Martial Law implementation, does not affect the status of a city’s economy

New Southern Gothic

Investigating the demise of the writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this paper questions the callused lineage of cases upholding Title I of AEDPA and contends that states must take up a statutory method like Texas’s to review defendant’s claims of actual innocence to ensure that the legal system designed under the U.S. Constitution remains fair and just not only in theory, but in practice. Using imagery from the southern gothic genre, this paper also reveals that “the death belt” most adequately portrays the reality of the death penalty, as many appeals based on actual innocence originate from this area.

Intellectual Disability in Capital Murder Cases

In Rodriguez v. Sec'y, Fla. Dep't of Corr. , 818 F. App'x 945 (11th Cir. 2020), the U.S. Court of Appeals for the Eleventh Circuit found that the U.S. District Court for the Southern District of Florida properly denied Mr. Rodriguez's petition for a writ of habeas corpus , in which he claimed

Springing Amir

For a 2016 article on immigration detention in Canada, I co-created a composite case study namedAmir. At the end of writing, I left him indefinitely incarcerated. This article provides an opportunity both to suggest more ethical ways to research detention, and to query White scholarly acquiescence to anti-Black racism and the build-up of detention systems. To springAmir, I slide a series of four, interrelated doors: (1) discretionary release; (2) a writ of habeas corpus; (3) the end of anti-Black, anti-Muslim, and anti-refugee discrimination in Canada; and (4) the abolition of detention. I conclude with a reflection on promising methodological directions leading toward a new horizon of immigrant and racial justice.

Legal Personhood: The Case of Chucho the Andean Bear

Abstract Chucho is an Andean bear who had lived most of his life in semicaptivity in a nature reserve in Manizales, Colombia. After his sister’s death, he became severely depressed, so the environmental authority transferred him to Barranquilla Zoo. A local lawyer filed a writ of habeas corpus based on Chucho’s right as a sentient being to live in his natural habitat. This writ has triggered a complex debate on nonhuman animal legal personhood and animal rights between two of the highest courts in the country: the Supreme Court of Justice and the Constitutional Court.

Legal Personhood and Animal Rights

Abstract A relatively recent form of animal activism is lawsuits intended to declare some animals as legal persons. A pioneer of this approach is the U.S.-based Nonhuman Rights Project (NhRP). This organization’s primary strategy has been to invoke the writ of habeas corpus, which protects the right to personal freedom of “persons.” The article criticizes the notion of legal personhood that the NhRP is employing and explains how an alternative understanding of legal personhood could perhaps make nonhuman rights more palatable for courts.

Immigration Detention and the Illusory Alternatives to Habeas

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article examines that question in depth, focusing specifically on the availability of meaningful alternatives for detained noncitizens. The Article analyzes challenges for noncitizens in bringing civil rights actions under Section 1983 or Bivens, tort actions under the Federal Tort Claims Act and state tort laws, and actions for injunctive relief directly under the Fifth Amendment and under the Administrative Procedure Act. By demonstrating that meaningful alternatives to habeas are often illusory for detained noncitizens, the Article argues that courts should err on the side of exercising habeas jurisdiction instead of making cursory conclusions that alternative remedies can be pursued.

The Lincoln Administration and Freedom of the Press in Civil War Maryland

Across all of American history, the accumulation of state power during times of war and national emergency has been the most destructive threat to freedom of the press. Clashes between the government and the press have occurred as early as the Quasi-War with France and recently as the War on Terror. Freedom of the press came under sustained assault during World War I and again during the Vietnam War. But perhaps the most outrageous violations of freedom of the press came during the Civil War. Although suppression of freedom of the press by the Lincoln Administration took place across a broad swath of the Union, the battle between government and press was particularly acute in border states because of their slave populations and secessionist sentiments. In particular, Maryland presented a complex challenge to President Lincoln during the Civil War. The people of the slaveholding state were sympathetic to the South, but its economy was becoming increasingly integrated with the industrial North. Most importantly, Maryland's strategic location placed it on three sides of Washington, D.C.; and its secession would leave the national capital completely surrounded by the Confederacy. Deciding that the loss of the capital would be intolerable to the war effort, the Lincoln administration suspended the writ of habeas corpus as part of a larger, deliberate campaign to keep Maryland in the Union. The suspension was the foundation upon which the administration suppressed freedom of the press in Maryland. This strategy involved imprisonment without trial of journalists and publishers, seizing their property, deportation beyond the Federal lines, shuttering of their newspapers, and barring their publications from using the mails. These events represented among the most egregious violations of civil liberties in American history.

'Man is Opposed to Fair Play': An Empirical Analysis of How the Fifth Circuit Has Failed to Take Seriously Atkins v. Virginia

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could be executed in violation of the Eighth Amendment.Atkins provides a blueprint, but the question remains as to whether it will, in the long run, be more than a “paper victory.” Until these issues are carefully considered, the true legacy of Atkins and its progeny will not be at all clear, and it will similarly not be clear if the case’s revolutionary potential will be fulfilled. In this paper, we seek to answer this question: to what extent has the Fifth Circuit given meaningful life to Atkins and its progeny? Our research reveals that, in the universe of 70 “Atkins cases” (that is, cases in the Fifth Circuit in which colorable Atkins-based arguments had been raised by defendants on habeas corpus applications), in only nine cases (12%) was any actual and meaningful relief granted to defendants (their sentences being commuted to life in prison, with one of those defendants having a parole hearing scheduled). In 40 of the 70 cases (57%), the Circuit affirmed a decision below, in most cases, denying applications for writs of habeas corpus. Eight cases (11%) are still pending, that is, there was a remand from the Fifth Circuit or a grant of a certificate of appealability, and further proceedings are currently taking place or being scheduled. In 13 cases (18.5%), although preliminary relief had been granted, defendants were ultimately unsuccessful; as of the writing of this paper, ten have been executed, one defendant’s execution has been stayed because of Covid-related reasons, one died in prison and one remains on death row. In short, if every one of the defendants in pending cases is successful (an outcome that, based on the Fifth Circuit’s global track record, is certainly not likely), that will mean that Atkins’ claims were successful in just 24% of all cases. Our findings also revealed important patterns of why certain defendants were successful, and the majority were unsuccessful. It was more likely that at least preliminary relief was granted in those cases in which defendants were able to rebut allegations that they were “malingering,” in which effort to raise the so-called “Flynn effect” were prevalent, and in which the WAIS IQ test was relied upon; if all three were present, that seemed to heighten the likelihood of success. On the other hand, the findings also revealed that it was less likely that a defendant would be successful if the WISC IQ test were used, if there was no rebuttal for malingering claims or if the subsequently-discredited testimony of one forensic psychologist was used by the state.Our roadmap is this: First, we discuss the Atkins case and the significance of how post-Atkins cases modified and reinforced some of Atkins’ most salient points. Following this, we will examine the universe of Fifth Circuit cases applying (often, misapplying) Atkins, explaining our methodology and revealing our findings. We then consider this entire area of law and policy through the lens and filter of therapeutic jurisprudence, and then subsequently apply that doctrine’s principles to the database of the cases in question. We conclude by offering some modest suggestions focusing on how we can finally, some 17 years after one of us used this phrase in a title of another law review article about Atkins, “giv[e] life” to this case.

Habeas Corpus, Its Versatility on Both Sides of the ‘Pond,’ and When Right against Remedy Becomes Quixotic

This article examines the writ of habeas corpus ad subjiciendum and notes the greater use to which the writ has been put in the United States as compared to England and Wales, as well as an interesting conceptual problem identified in the US case of Hamdi v Rumsfeld. The light shed by this discussion will assist examination of the reasons why habeas corpus ad subjiciendum has become more versatile in the United States than in England. It will be concluded that this difference reflects structural differences across the two jurisdictions, and that the writ in England and Wales – where it will be satisfactorily answered by a showing that someone is in custody pursuant to the order of a court with jurisdiction to confine him – does not need to be expanded beyond its current form, despite the greater American development of the habeas corpus concept.